Wednesday, December 28, 2016

December. Wish I could title this column Peace on Earth.
But this prosaic, yet laudable, aspiration seems more elusive than ever. Instead, I will take a stab at another
deserving bromide, peace of mind. Perhaps
by the end of this column, I will have opened a pathway to inner tranquility.

I hearken on the theme I have harped
on over the years‑‑ uncertainty. There,
before the helpless, hollow-minded lawyer, “falls the shadow” of uncertainty. It is a heavy-handed, harrowing, horrific, hateful,
hurtful, hellish harassment. It hastens
the hapless lawyer to hesitate, then harpoon, hinder and harm all hope for
help. Sorry, I got a little carried away
with the H’s. I don’t mean T.S. I simply wish to stress that a harangue is not
helpful.

I acknowledge that uncertainty is
omnipresent, but more apparent in December as we contemplate what’s in store in
the coming year. And after our
extraordinary presidential election, it predominates. Because judges must refrain from political involvement,
I do not speculate about the pursuit of civil rights cases by the new United
States Attorney General. Nor do I pose
annoying questions like who will be the next United States Supreme Court justice
or how she or he will vote on controversial cases. That would be a futile endeavor.

Lawyers and judges know that fretting
about future outcomes is unproductive. The
best we can do is make seemingly rational predictions that are more likely
educated guesses about how judges or juries will decide particular cases. The decisions of so-called swing voting
justices on our higher courts often leave us bewildered.

A recognition that what appears on the
surface is seldom reflective of reality allows us to better cope with the world
as it is as opposed to what we pretend or hope it to be. We do better when we take what appears on the exterior
with a grain of salt. Judicial elections come to mind.

Some lawyers aspiring to garner votes
for an open seat on the superior court hope to prevail through their personal ballot
description. But I hope most of us know
that descriptive phrases in front of the word "prosecutor," such
as: "serial murder," "sex
perversion," necrophilia," "repeat parking meter offender,"
do not guarantee the candidate will be a good judge. In this age of public confessions, some voters
could believe these phrases describe the prosecutor rather than the crimes the
prosecutor prosecutes. Maybe a
"gang prosecutor" belongs to a gang. Descriptions and stories are subject to
interpretation.

Of
course, we lawyers and judges are writers and storytellers. And this means our tools are our words… and I
suppose our brains from which the words come. My friend, writer Charles Embree, reminded me what
the 20th century philosopher Ludwig Wittgenstein said about words. “Language is tautological. A word can only be defined by other words.”

At first I wasn’t so taken with
Wittgenstein. He was an impatient chap. There was a time when he taught grammar school
in small Austrian villages. He was
reputed to hit kids who got the wrong answers on math quizzes. I thank my lucky stars that I wasn’t one of
his students. I would have been black
and blue. But because I don’t believe in
astrology, even though I am a typical Capricorn, and Wittgenstein was smacking
Austrian kids before I was born, the stars probably have nothing to do with
it.

But Wittgenstein was one smart guy and
I learned to respect him despite his knocking grammar school kids around. Bertrand Russell described him as “the most
perfect example I have ever known of genius as traditionally conceived;
passionate, profound, intense and dominating.”
(Wittgenstein: A Life: Young Ludwig 1889-1921. Univ. of California
Press, 1988.) In fact, most of my
columns are inspired by Wittgenstein, who said: “A serious and good
philosophical work could be written consisting entirely of jokes.” Bertrand Russell died 17 years before I
published my first column. He was good
at mathematics. He would not have liked
my columns.

Other disciplines acknowledge that
what appears on the surface is misleading.
Last month I wrote about psychoanalyst Dr. Joye Barth who posited that
patients may unwittingly create fictions in reliving their pasts.

Attorney, lecturer, and author Rafael
Chodos has written a book I commend to you.
It is titled “Why on Earth Does God Want to Paint? Centripetal Art.” (Giotto Multimedia 2009.) I cannot do justice to this provocative and
challenging exposition on the work of Chodos’ wife, the renowned artist Junko
Chodos, in a paragraph or even in an essay. Junko's writings and paintings take us beneath
the surface where she exposes the innards of plants, bodies and engines. They have the power to shock us into a
recognition of what lies beneath the surface and to illuminate awareness about
the center of our very being, hence, the word "centripetal." Junko’s revelations changed Chodos' life and enabled
him to achieve a deeper insight about himself and his mission as a lawyer and writer.

I don’t suggest that exploring the
depths of Junko Chodos’ art or pondering Wittgenstein’s semantic and
philosophical conundrums will answer whether an equitable indemnity cause of
action is viable. But exploring
questions posed by other disciplines makes for a better lawyer or judge. To recognize the limits and the possibilities
inherent in our profession makes us better at what we do.

Uncertainty need not be
unnerving. We gain composure and
grounding when we embrace the tenets and professional responsibilities of our
profession. Years ago I was a panelist
on a program concerning civility where all the participants received a handout
that you will find invaluable. It is
called:

"PRINCIPLES
OF PRACTICE"

Observed by
the Senior Advisory Board of the

1998 Ninth
Circuit Judicial Conference

1. Give your word, and then keep it.

2. Accept responsibility, and then perform.

3. Pay attention to detail, but keep the
whole picture in mind.

4. Remember that exploiting short term
advantage often brings lasting bad consequences.

5. Of course be truthful, but also take the
trouble to be accurate. Being candid requires
both courage and tact.

6. Understand that courtesy and graciousness
are usually repaid in kind.

7. Remember that your integrity is your
greatest, and most precious, asset.

8. Be an attentive listener.

9. Avoid criticism that is either needless
or nonconstructive or both.

To practice these simple principles is
to calm the disquieting effect of uncertainty.

Let’s go back to Charles Embree and
end with lines from a poem he wrote, “The Sub-Atomic Life Is Not Worth
Living.” (Not to worry about the title.) He opened with his version of a verse from a
popular song written and performed by Louis Jordan and his Tympany Five in
1944, "Is You Is or Is You Ain’t My Baby." Charles wrote:

Is there is or is there ain’t a

Maybe?

From what I hear there’s no more room

For doubt;

Uncertainty now is certain,

Maybe’s time is time that’s done run
out.

And I take my final leave this year
wishing you Happy Holidays and Happy New Year… with an abundance of Peace of
Mind.

When one, O.K. me, has written a
column for 28 years, readers come to know you, or wish they didn’t. From month to month you make and lose friends
and enemies. You appreciate the praise,
and bear the criticism. It is what judges
experience and, as they say, comes with the territory. After almost three decades, I seldom worry
about whether or not a topic “will play.” I simply write about the insights I gain
through my experiences, quotidian, or otherwise. These often involve personal anecdotes. One reader sent me an email thanking me for
offering him “insight into the mind of appellate court judges.” Fearing that my colleagues throughout the
state would seek a restraining order to prevent future columns, I wrote him to
explain that there is no generic appellate mind. We all do our best to decide cases in
accordance with the law and the standards of review. Incidents or ordeals in my life may affect how
I, not other judges, view the law.

The preceding paragraph was an explanation or, if
you will, a warning that the remainder of this column is about an intensely
personal matter… my undershorts. So last
Monday morning, I followed my normal routine‑‑crawled out of bed at 6:30 a.m., tended
to the usual morning matters, then grabbed my gym bag, packed with what I
thought were all the usual accoutrements, and hurried to the gym for a robust
workout. Half-undressed and standing at
my locker, I discovered I left my gym shorts at home. All I had were my boxer shorts, the ones with
the bright red and blue squares, the ones that prompted my buddies in the locker
room to torment me. Bummer! What to do?
Could I get away with wearing my boxer shorts? I went for it and glad I did. I learned something, proving what Marcus
Aurelius once told me over a beer at the Forum Bar, “Life is what our thoughts
make of it.”

For starters, no one seemed to notice my
shorts. But because of my predicament, I
was checking out everyone else’s shorts.
And I realized after so many years at the gym, this was the first time I
had ever thought about, let alone noticed, anyone’s shorts. I felt self-conscious glancing at other
people’s shorts. It was apparent that no
one other than I was looking at anyone else’s shorts. I am not sure this has anything to do with
etiquette or the concern that a below-the-belt observation could result in an
arrest. If on another day someone in my
line of vision had committed a crime in the gym while I was doing pushups, and
I was called as a witness to identify the person by the type of shorts the
culprit was wearing, I would be demolished on cross-examination. Let’s not even try to envision what that
crime might be. By the way, deciphering
the paragraphs of script tattooed on the backs of various gym members, a topic
we have explored in past columns, has not resulted in criminal prosecutions.

This awkward experience got me thinking
about the reliability of testimony. And
this in turn took me back to my college philosophy classes. For this I have to thank my pal Marcus. The beer was worth it. Do the facts that witnesses perceive exist
independently from their perceptions? What
do witnesses really see? To what extent
do their past experiences, concerns and wishes influence how they perceive the
facts? They might imagine what they
saw. Do facts exist apart from our
perception of those facts? Sort of like the
tree-falling-in-the-forest question.

I consulted my friend, eminent
psychoanalyst, Joye Weisel-Barth. In her
lectures and published papers, Dr. Barth posits that in the story of a
patient’s or any person’s past, the imagination plays a role, writing a new
story, growing out of one’s desires and ambitions. Of course the intimate relationship between
an analyst and a patient over a long period of time is far different than that
of an attorney and client, but there is one similar characteristic. The relationship involves a story about the
past. Barth explains that “the analyst
and the patient use their imaginations to filter experience, memories … and
specific explicit and enacted moments of experience.”

Similarly, I would argue that
imagination plays a role in the stories that are engendered though the
relationships between lawyers, clients, witnesses and judges. This should teach us not to be too smug or too
certain in how we interpret and relate these stories. An awareness of this phenomenon can bring us a
step closer to achieving justice.

But is the recollection of all facts subject to such
concern? What about establishing whether
or not a letter or contract exists, what some would call an irrefutable or
irreducible fact. If the letter or
contract is produced and is genuine, one’s imagination may not be a factor. Of course the interpretation of the words and
terms of a letter or contract is a different matter.

Speaking of letters, I want to share some exciting
news with you. I recently received an
email in letter form (exactly as I received it) from the “COPORATE HEAD OFFICE
of Citizen’s Bank of Canada,” informing me that “Twelve Million Six Hundred
Thousand United States Dollars has been approved and deposited few days ago
with our BANK” in my name by the “foreign debts settlement/compensation
committee of European Union and the Executive members of the World Bank, and
they instructed us to credit this fund direct to your private bank account with
immediate effect.”

Pardon the grammatical errors in the
email. No doubt “they” were excited
about my good fortune. And that’s not
all. The email goes on to inform me,
“Meanwhile, the good news about your fund now is that your compensation payment
file with some of the legal documents backing this fund has been forwarded to
the Canadian Ministry of Finance and the United Nations for final approval.” Yes, I know this news is too good to be true,
but the email says when they “hear” from me, they will proceed with the
transfer because “we were mandated to transfer this fund to you as one of the
beneficiary whom the name is listed in the World Bank foreign debts
settlement/compensation payment file.” Wow! And all I have to do is forward them personal
information including “Any of Your Identity Card.”

I told my friend Marcus Aurelius about
my good fortune. He brought up the
subject of my shorts.

Wednesday, October 26, 2016

On Labor Day, 41 years ago,
Justice Stanley Mosk swore me in as a judge of the Los Angeles Municipal Court.
Within a few days of this depressing… I
mean significant anniversary, the Daily Journal published my 252nd
column. How best to describe the
column? In my imagination, a perceptive
reviewer would write: "An
adventurous read of a profusion of topics artistically tied together by a
common thread that may escape readers unaccustomed or hostile to
subtlety."

The overriding topic in that column was, in a word,
"short." I am shorter than I
was at the beginning of my judicial career four decades ago. I received supportive comments that it's O.K. to
be short… from short people and elderly people who are shrinking. I also received emails in praise of short
opinions. Significantly, none came from
the Supreme Court.

I
wrote about the celebrated Palsgraf
case, the premier example of a masterfully written short opinion. (Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928).) By coincidence,
just at the time my September column appeared, I spoke to a group of young law
students at UCLA School of Law who were serving as externs at the Second
District Court of Appeal. As an example
of good writing, I read to them the facts in the Palsgraf opinion. You will
recall that a man carrying a small package jumped aboard a train as it was
pulling out of the station. The package,
which contained fireworks, fell from his grasp onto the tracks and
exploded. The shock caused scales at the
end of the platform to fall on and injure plaintiff Ms. Palsgraf.

The
students looked puzzled. "What are
scales?" they asked. I was
dumbfounded. "Scales?" I asked
rhetorically. "Does anyone here
work out in the gym?" Nods and a
few "yeahs." "Do you ever
weigh yourself on the scales? And
doesn't the doctor weigh you on the scales in her office?" Blank looks from everyone. It is bad enough that age makes us shorter,
but does it make our language archaic?
Then one student accepted my explanation of scales, "O.K., fine,
scales weigh you. But why would anyone
want to weigh themselves or anything at a train station?" I think I settled the issue. I patiently explained that a passenger might
need to weigh his or her valise.

In
my discussion of the Palsgraf case,
however, I also had a question. How
could a small package of fireworks falling on the tracks explode with such
magnitude that it causes scales at the end of the platform to topple down on
poor Ms. Palsgraf? I had in mind a large
Otis scale with a weighing platform at the base, a long neck reaching up to a
large round dial with an arrow denoting pounds.

Attorney
Michael Sokolich wrote to me that when he was in law school he too wondered
about how the fireworks in Palsgraf
could explode if a fuse was not lit.
When I was in law school, I was too scared to ask that question of our
intimidating professor, Dean Prosser.
Sokolich explains that there used to be types of fireworks that explode
on contact with the ground or any hard surface. An example is "cracker balls," that
explode when thrown at a hard surface. I
remember them. But as Sokolich points
out, they were pea-sized and did not have much power. He posits that the likely explanation is that
at the time Palsgraf was decided there
was a class of larger fireworks called "torpedoes" that may have been
the culprits. Maybe so, but the package
of fireworks that allegedly caused the explosion in Palsgraf was only "about 15 inches long." Like questions concerning the meaning of
life, or why we or our tempers get shorter, we are not likely to know the
answer to the Palsgraf fireworks
question.

But
I was particularly impressed with Sokolich's wise observation that "older
cases . . . are usually models of brevity and clarity. The same with our statutes, older usually
means shorter."

But
getting back to fireworks and torpedoes.
The California Supreme Court has adopted a new policy concerning
petitions for review. The policy was
apparently provoked by Vergara v. State
of California et al., 246 Cal.App.4th 619 (2016). The case involved the constitutionality of
various provisions of the Education Code.
At the conclusion of the published opinion is a "STATEMENT"
by the Chief Justice. The statement sets
forth a policy concerning statements by justices who dissent from the denial of
a petition for review. Those dissenting
statements will be published and appended to the original appellate opinion in
the Official Reports. The Chief's
STATEMENT reminds us that "an order denying review does not reflect the
views of the justices voting to deny review concerning the merits of the
decision below."

Something
like this practice is common with United States Supreme Court justices who wish
to grant certiorari when their colleagues vote to deny. Such a justice might write in the order
denying certiorari a brief reason why he or she would grant cert. In Vergara,
Justices Liu, Cuéllar, and Chin voted to grant review. But Justices Liu and Cuéllar wrote published
dissents to support, not just their reasons for wishing to grant review, but to
criticize the Vergara opinion. We appreciate insight into why a particular
Supreme Court justice believes review should be granted. But if the dissenting views on a petition for
review become tantamount to opinions critiquing the Court of Appeal opinion,
the precedential value of the Court of Appeal opinion is diminished.

Maybe
that is what the dissenting justices wish to accomplish, but certainty and
predictability suffer. I fear this rule
could morph into something even more scary.
Imagine for a moment that Justice Chin, who also voted to grant review
in Vergara, did so because he agreed
with the opinion but thought the Supreme Court should speak to the issues. What if he wrote a dissenting opinion,
dissenting from the opinions of Justices Liu and Cuéllar? Oh dear!
And what if the justices voting to deny review weighed in with opinions
of their own?

It
stands to reason that from my perspective this new policy is unnerving. If one of my published opinions is harshly
criticized by one or more dissenting Supreme Court justices wishing to grant
review, I will feel like Ms. Palsgraf.
Only it will be the scales of justice that fall on me. Such an event would be so… so… unforeseeable. I just might pack my valise and catch the
next train to Rockaway Beach.

I am a strong proponent… No, I need a more forceful
adjective. How about “obsessive”? Yes, …an obsessive proponent, advocate,
champion for short opinions. Is anyone
listening? Not the United States Supreme
Court and not many of my distinguished colleagues in our state courts. We limit the number of pages in briefs that lawyers
file in our courts. Judges should adhere
to a similar rule.

We know all the arguments favoring
short opinions advanced by a host of commentators, which include Garner,
Aldisert, Leflar, and Witkin, to name a few.
With me, it has become an…oh, yes, I already said,
"obsession." "Fixation"
probably doesn't add much. But you get
the idea. But why such an all-encompassing
preoccupation? Recently I experienced an
epiphany in an environment far removed from the law. That lawyers and judges were present had nothing
to do with my insight.

A few months ago
musicians and singers, all of whom were in the legal profession, performed a "rock
and roll" medley of songs from the 50's and 60's written by famed composer
Richard Sherman. The concert at Disney
Hall featured the Los Angeles Lawyers Philharmonic conducted by Maestro Gary
Greene, Esq. The singers included Judge
Curtis Kin, Linda Hurevitz, and Ken Freundlich.
The musicians were Bill Ryan on guitar, Eric Schaefer on bass, Jerry
Levine on drums, and yours truly on keyboards (a misnomer)‑‑it was only one
keyboard, electric (ugh), not a real piano, or, as they call it in the
profession, an "acoustic" piano.

Rock and Roll from any era is not
my genre. But playing in this concert
was a treat, because it was in honor of the personable and warm-hearted composer
Richard Sherman, winner of two Academy Awards, The National Medal of Arts, and
numerous other awards. Richard was present
and told me how much he enjoyed the concert.

The tunes we played included
"Pineapple Princess" and "You're Sixteen." (Don't I wish). But one tune in particular upset me, "Tall
Paul." The lyrics make a big deal
about stupid Paul just because he's tall.
Of course it bothered me because I’m short, not the most impressive
attribute to have in high school…when you are sixteen.

And with advancing age, I'm getting
shorter. I have been called the
"incredible shrinking judge."
I have nightmares about the movie "The Fly." In the final scene of the early 1958 film
classic, the hero who has turned into a fly is nearly invisible caught in a
spider's web. I still identify with this
creature crying out in his small, high-pitched voice, "Help me, help me."

So it is possible that my bias in
favor of short opinions stems from my height… or lack of it. Yet that should not detract from my argument
that generally shorter opinions more clearly explicate the law than longer
ones. Only, like the plight of the fly,
no one appears to hear my cry for shorter opinions, despite the universal
acknowledgement that "less is more." I would amend the maxim of jurisprudence
enshrined in Civil Code section 3537 so that it would read: "Superfluity
does vitiate."

Some of our nation's great jurists
wrote short opinions. I have often
remarked about Justice Cardozo and his famous Palsgraf opinion. Twenty-seven
years ago I wrote in the Daily Journal:

"I don’t think writing comes easy. It requires effort and commitment to write
something of quality. A good finished
product comes from several drafts, whether it be an article, a hate letter or a
shopping list. It’s even harder to write
an opinion that is lucid and concise. Take
for example the famous opinion in Palsgraf
v. Long Island Railroad Co., 248 N.Y. 339 (1928). It is a paradigm of simplicity and clarity. Here is the statement of facts:

“‘Plaintiff was standing on a platform of defendant’s railroad after
buying a ticket to go to Rockaway beach. A train stopped at the station, bound for
another place. Two men ran forward to
catch it. One of the men reached the
platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped
aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door
open, reached forward to help him in, and another guard on the platform pushed
him from behind. In this act, the
package was dislodged, and fell upon the rails. It was a package of small size, about fifteen
inches long, and was covered by a newspaper. In fact, it contained fireworks, but there was
nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some
scales at the other end of the platform many feet away. The scales struck the plaintiff, causing
injuries for which she sues.’”

Cardozo pointed out that an over-emphasis on details obscures
meaning, and the Palsgraf opinion
makes the point with just the right amount of detail. Yet, even the writing in Palsgraf has been criticized.
I read recently that one critic complained that there was no need to
mention two men running for the train. His
point, who cares about the guy who made it to the platform of the moving train
without mishap? He has nothing to do
with the case. The person of interest is
the one who was unsteady, requiring the guards' help, which caused him to drop
the small package of fireworks.

Not sure I agree with that
assessment. With an economy of words, Cardozo
vividly describes the entire scene. Two
men are running for the train. The less
agile, and probably the taller one, needed help. In my opinion the scene lacks impact without
reference to the shorter, more nimble, of the two men running for the
train. The words paint a picture the
reader can visualize.

Yes, these facts, so clear and
concise, are nevertheless puzzling. How,
under these circumstances, could a small package of fireworks explode? And how could such an "explosion"
be of such force to cause scales at the other end of the platform to fall on
poor Ms. Palsgraf? Don’t you have to
light fireworks? Maybe a spark emanated
from the engine, or maybe fireworks in the 1920’s were different than the
firecrackers I lit as a kid. Don't
spread that last comment around please.

I can hardly bring myself to say
this, but could it be that the Palsgraf
opinion is too short? But then again is
it necessary to know how the fireworks exploded? I mean they did, right? I have to think about this some more. Oh gosh, this column is getting too
long. Better stop. I’ll get back to you. If I had time, I would have written a shorter
column.

I am a strong proponent… No, I need a more forceful
adjective. How about “obsessive”? Yes, …an obsessive proponent, advocate,
champion for short opinions. Is anyone
listening? Not the United States Supreme
Court and not many of my distinguished colleagues in our state courts. We limit the number of pages in briefs that lawyers
file in our courts. Judges should adhere
to a similar rule.

We know all the arguments favoring
short opinions advanced by a host of commentators, which include Garner,
Aldisert, Leflar, and Witkin, to name a few.
With me, it has become an…oh, yes, I already said,
"obsession." "Fixation"
probably doesn't add much. But you get
the idea. But why such an all-encompassing
preoccupation? Recently I experienced an
epiphany in an environment far removed from the law. That lawyers and judges were present had nothing
to do with my insight.

A few months ago
musicians and singers, all of whom were in the legal profession, performed a "rock
and roll" medley of songs from the 50's and 60's written by famed composer
Richard Sherman. The concert at Disney
Hall featured the Los Angeles Lawyers Philharmonic conducted by Maestro Gary
Greene, Esq. The singers included Judge
Curtis Kin, Linda Hurevitz, and Ken Freundlich.
The musicians were Bill Ryan on guitar, Eric Schaefer on bass, Jerry
Levine on drums, and yours truly on keyboards (a misnomer)‑‑it was only one
keyboard, electric (ugh), not a real piano, or, as they call it in the
profession, an "acoustic" piano.

Rock and Roll from any era is not
my genre. But playing in this concert
was a treat, because it was in honor of the personable and warm-hearted composer
Richard Sherman, winner of two Academy Awards, The National Medal of Arts, and
numerous other awards. Richard was present
and told me how much he enjoyed the concert.

The tunes we played included
"Pineapple Princess" and "You're Sixteen." (Don't I wish). But one tune in particular upset me, "Tall
Paul." The lyrics make a big deal
about stupid Paul just because he's tall.
Of course it bothered me because I’m short, not the most impressive
attribute to have in high school…when you are sixteen.

And with advancing age, I'm getting
shorter. I have been called the
"incredible shrinking judge."
I have nightmares about the movie "The Fly." In the final scene of the early 1958 film
classic, the hero who has turned into a fly is nearly invisible caught in a
spider's web. I still identify with this
creature crying out in his small, high-pitched voice, "Help me, help me."

So it is possible that my bias in
favor of short opinions stems from my height… or lack of it. Yet that should not detract from my argument
that generally shorter opinions more clearly explicate the law than longer
ones. Only, like the plight of the fly,
no one appears to hear my cry for shorter opinions, despite the universal
acknowledgement that "less is more." I would amend the maxim of jurisprudence
enshrined in Civil Code section 3537 so that it would read: "Superfluity
does vitiate."

Some of our nation's great jurists
wrote short opinions. I have often
remarked about Justice Cardozo and his famous Palsgraf opinion. Twenty-seven
years ago I wrote in the Daily Journal:

"I don’t think writing comes easy. It requires effort and commitment to write
something of quality. A good finished
product comes from several drafts, whether it be an article, a hate letter or a
shopping list. It’s even harder to write
an opinion that is lucid and concise. Take
for example the famous opinion in Palsgraf
v. Long Island Railroad Co., 248 N.Y. 339 (1928). It is a paradigm of simplicity and clarity. Here is the statement of facts:

“‘Plaintiff was standing on a platform of defendant’s railroad after
buying a ticket to go to Rockaway beach. A train stopped at the station, bound for
another place. Two men ran forward to
catch it. One of the men reached the
platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped
aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door
open, reached forward to help him in, and another guard on the platform pushed
him from behind. In this act, the
package was dislodged, and fell upon the rails. It was a package of small size, about fifteen
inches long, and was covered by a newspaper. In fact, it contained fireworks, but there was
nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some
scales at the other end of the platform many feet away. The scales struck the plaintiff, causing
injuries for which she sues.’”

Cardozo pointed out that an over-emphasis on details obscures
meaning, and the Palsgraf opinion
makes the point with just the right amount of detail. Yet, even the writing in Palsgraf has been criticized.
I read recently that one critic complained that there was no need to
mention two men running for the train. His
point, who cares about the guy who made it to the platform of the moving train
without mishap? He has nothing to do
with the case. The person of interest is
the one who was unsteady, requiring the guards' help, which caused him to drop
the small package of fireworks.

Not sure I agree with that
assessment. With an economy of words, Cardozo
vividly describes the entire scene. Two
men are running for the train. The less
agile, and probably the taller one, needed help. In my opinion the scene lacks impact without
reference to the shorter, more nimble, of the two men running for the
train. The words paint a picture the
reader can visualize.

Yes, these facts, so clear and
concise, are nevertheless puzzling. How,
under these circumstances, could a small package of fireworks explode? And how could such an "explosion"
be of such force to cause scales at the other end of the platform to fall on
poor Ms. Palsgraf? Don’t you have to
light fireworks? Maybe a spark emanated
from the engine, or maybe fireworks in the 1920’s were different than the
firecrackers I lit as a kid. Don't
spread that last comment around please.

I can hardly bring myself to say
this, but could it be that the Palsgraf
opinion is too short? But then again is
it necessary to know how the fireworks exploded? I mean they did, right? I have to think about this some more. Oh gosh, this column is getting too
long. Better stop. I’ll get back to you. If I had time, I would have written a shorter
column.

Monday, August 01, 2016

I have often complained, I
mean noted, that contrary to popular belief, judges have little power. Judges must endure the indignities and
constraints that confront all of us. A few
personal calamities prove the point. Like you, I also have to spend 45 minutes
on the phone complaining to someone who speaks Sanskrit about my poor internet
service.

In the middle of the night, when the evening is spread out
against the sky like a patient euthanized upon a table, before trash pickup the
next day, a miscreant roams through my neighborhood. He crams trash containers with bags of smelly
garbage. The culprit is either
colorblind or deliberately violates the rules concerning the correct bins for recyclables. He over fills the bins, causing odoriferous
waste to land in the street. Like my
neighbors, I am a victim of these marauders, yet they think I can solve the
problem. Fat chance. I opt for fetid refuse over a confrontation
at 3 a.m.

In one of my columns a few months ago, I wrote about the
thief that got away. My wife
Barbara and I heard the thump of a package we were expecting as it hit the
threshold of our front door. Shortly after we heard the delivery truck pull
away, Barbara opened the door. A young
woman clutching our package was running to a waiting car. Barbara yelled an unavailing
"Stop!" I wish she would have
added "thief" at the end of her futile command. The young woman jumped into the car which
sped off before Barbara could get the license plate number. I arrived just as the car turned the
corner. I shouted at the top of my
lungs…. It's not important what I
shouted. Do children read the Daily
Journal?

We got even with the thieves, proving
that on occasion even a justice gains a
measure of justice. The package contained the poems of a new annotated book, The
Poems of T.S. Eliot. That will teach
them. I wonder how the thieves' world
view was influenced by themes of despair and futility in “The Waste Land.” They were ultimately apprehended. I learned that after pleas of guilty they
were given jail time and various conditions of probation. If I had my say, I would have required the condition
that they write an essay on the relation of Eliot's "objective correlative"
in his poetry to their own lives. Our local paper brought home to the community that judges,
like everyone else, are victims. The
Palisadian Post wrote a front page article about the incident titled Porch Pirates Nab Poetry Books. Implicit in the article was the
observation that the judge and his wife were powerless to do anything about it.

Judges are not just subject to the ordinary vicissitudes of
life. They must endure a multitude of
professional restraints. If you recall,
in my last column Judge Foote created a disaster when he brought a flying fish
to an arbitration hearing. Years ago I
thought about bringing my cat to court.
I decided it would be too controversial if I let him sit on the bench
during oral argument. If he purred into
the microphone, litigants might think I was snoring. Would I face some type of discipline if I let
him hang out in chambers with me? I did
not want to risk it. My staff, under the
direction of one of our judicial assistants, Gloria, had his likeness reproduced
on a rock. A few decades ago pet rocks
were the rage. But those were just
rocks. My pet rock is a pet cat
rock. So, in a sense, I have my cat with
me at work. For obvious reasons, I would
prefer you not spread this around too much.

And judges must be careful about expressing certain
opinions that ordinary citizens do all the time. The recent Justice Ginsburg imbroglio comes
to mind. Her comments about Donald Trump
prompted a statement of regret. “On reflection, my recent remarks in response to press
inquiries were ill-advised and I regret making them. Judges should avoid
commenting on a candidate for public office.”

Commentators were quick to criticize Justice
Ginsburg's salvo as inimical to the concept "judicial
neutrality." But Professor
Chemerinsky wrote in an editorial in the Los Angeles Times that Justice
Ginsburg's apology was unnecessary.
Professor Chemerinsky observed that other Supreme Court justices have
said and done things that were considered inappropriate. But the federal code of judicial ethics
disallows judges the freedom to take sides in an election. Chemerinsky argued that these rules do not
apply to Supreme Court judges.

Despite my great respect for Professor Chemerinsky, I find
this argument unpersuasive. Maybe that
is because the California Code of Judicial Ethics prevents me from publicly
endorsing or opposing a candidate for public office. Canon 5A(2).
So I guess I cannot say I agree… or disagree with Justice Ginsburg's
assessment. And by assessment, I will let
you, dear reader, decide if I am referring to her initial comment or her
subsequent one… or both. While I ponder
these troubling questions, I will pet my pet cat rock.

A SAD GOODBYE

My
Daily Journal columns and some of my other articles and stories have received a
wider audience of devoted, but perplexed, readers through the publication of my
book Under Submissionby the Rutter
Group, a division of Thomson West (2008).
This came about through the efforts of William Rutter and Kalman
Zempleny, who, after the passing of Bill Rutter, became the Director of the
Rutter Group. We all agreed that
proceeds from the sale of Under Submission would go to legal charities. A few weeks ago, my dear friend Kalman passed
away. So sudden and so unexpected, his
death has left his legions of friends in shock and dismay. We will always remember him for his devotion to
excellence in legal education, his unfaltering optimism, his warmth and
kindness to all who were fortunate to know him. Goodbye dear friend. You made a difference.

That’s one small step… on second thought, a medium step for
everyone... but the giant leap‑‑I'll settle for a step‑‑ is yet to come. Apologies to Neil Armstrong; man and mankind are
in the same class, and I prefer human kind.
But no matter whether or not Mr. Armstrong failed to distinguish between
the specific and the general. The
California Supreme Court took a step. It
unanimously amended California Rules of Court, rule 8.1105(e)(1) (effective
July 1, 2016) so that Court of Appeal decisions will not be automatically
depublished when the Supreme Court grants review. The opinion still may be citable unless and
until the Supreme Court says otherwise.
Of course, the Court of Appeal opinion would not be citable to the
extent it is inconsistent with the decision of the Supreme Court.

I voted for the change in the
survey circulated by the Chief Justice for public comment. But other than my vote, is it possible? No, probably not…but just maybe some of the
present justices read my first column for the Daily Journal on June 9, 1988,
titled It Never Happened. I criticized the then-current and past
practice of depublishing Court of Appeal opinions in general.

None of the current justices were
on the Supreme Court when I published my first column. For all I know, one or two could have been
toddlers then, but certainly precocious toddlers. So maybe they glimpsed it. At any rate, it is time to take a bigger step
and scuttle the outdated practice of depublication. The word itself shows up as a spelling
error. The shaky rationale for this
murky rule is that, although the depublished opinion comes to the right result,
the reasoning is wrong. Need I say more? Let’s have transparency. Not to prolong the suspense, here in its
entirety is my first column, re‑published three days short of its 28th
anniversary:

It
Never Happened

Most people don’t know what Court of Appeal justices do, and that
includes many trial judges. Generally a Court of Appeal justice writes
opinions; “grinds them out” would be a better way of saying it. Henry Ford
would approve. The opinions bump along the assembly line and then chug down the
road to oblivion. Along the way they are used or misused by attorneys or judges,
who sometimes read them.

But deep within the heart of every appellate justice there lies
the seed of an occasional masterpiece, a gem that would make Benjamin Cardozo
turn green with envy. It starts with a case that fortuitously comes your way.
Something special occurs during this random encounter. You begin to feel ideas
growing and developing in your brain.

The
Unseemly and Grotesque Stage

During an appropriate period of gestation, the ideas coalesce into
a concept. When the concept fights and claws its way out of your brain and
plops in a heap on the page, you know you are ready to write the first draft of
the opinion. When you’re done, that draft is wiggling with life but not ready
for public consumption. It is unseemly and grotesque, like the mutant
baby in the cult film classic “Eraserhead.”

But it’s your baby, and you nurture it and shape it, draft after
painstaking draft. And then you know, as if by instinct, that the opinion is
ready. It shimmers with clarity and reason. Magnanimously, you acknowledge that
the brief on the winning side was persuasive, but the opinion has your
signature- figuratively and literally. The opinion reflects your style, your
panache, your essence.

Shortly after the publication of your chef d’oeuvre, you happen to
attend a cocktail party given by the local bar association. You try to avoid an
attorney known for his unctuous fawning, but when he starts praising your new
opinion, you find his conversation engaging and stimulating. You tell him in a
modest, self-effacing tone that you hope the opinion will be useful. You think
it might be unseemly to tell him that you know the opinion illuminates the law,
gives it meaning and purpose, that it persuades and sparkles with reason and
insight.

I have experienced this. But it’s hard to talk about because it
never happened. No, I don’t mean I imagined it. I don’t mean I’m crazy and
hallucinating. It's much more than that. I mean the state Supreme Court
depublished it. Someone up there simply pulled the switch on an opinion that had
just begun to bask in the light of recognition.

The ostensible reason for this ignominious termination is that the
opinion reached the right result, but for the wrong reason. Maybe so, but the
recent use of depublication on such a wide, unprecedented scale means that
there is a large group of justices writing poorly reasoned opinions. I suppose
the depublication rule helps stem the flood of cases inundating the California
Reports, but it also keeps ideas locked in the closet.

No
Useful Purpose

Whatever the reason for the rule, it serves no useful purpose. Why
hide the reasoning of an opinion, whether good or bad, from the rest of the
world? If the Supreme Court does not care for an opinion, it can decertify it.
The opinion may lack precedential value, but at least it exists as an object of
either enlightenment or of ridicule. Another interpretation of the law is at
least accessible to scholars, lawyers or collectors of the bizarre and occult.

Decertifying instead of depublishing opinions will not increase
the Supreme Court’s caseload. It will, however, permit the expression of all
ideas and will serve an important educational function for the bar and the
public. And, who knows, the spurned opinion just might become the law in the
next millennium.

I’m not holding my breath that the rule will be changed in the
near future. If it does not change soon, one of my colleagues suggested that we
publish all the depublished cases. That’s a brilliant idea. I just may start an
underground publishing firm that will publish only depublished cases. I’ll call
the company East’s Oxymoron Publishing Co.- “Cases That Can Get You in Lots of
Trouble if You Cite Them.”

Better
yet, maybe we can change the rule so that justices on the Court of Appeal
rather than the Supreme Court will have the last word on the whether a case is
published or depublished. I can just imagine what would happen with such a
rule. Assume I have decided not to publish a case, but the Supreme Court wants
it published.

“Oh please, publish this case,” the Supreme Court asks me.

“No,” I answer. “I don’t think it really merits publication.”

“But it’s so good, you have crystallized your ideas into a
succinct, readable treatise on this complex issue of law. There is a desperate
need for your opinion. Its publication will be a significant contribution to
the people of this state, and the legal profession.”

Wednesday, July 20, 2016

It has been awhile since I
have written about Judge Learned Foote and many of you have inquired about
him. He has diligently avoided
controversy. Intense scrutiny of public
figures these days makes this a difficult task.
Up to now Judge Foote had succeeded in keeping out of the public
eye. But unwittingly he became embroiled
in a matter over which I believe he had little control. I leave it to you, dear reader, to judge for
yourself.

It began with a settlement conference gone awry. The underlying case grew out of an employment
dispute involving defendant, a writer known as Kipling, and six struggling singers
in search of a day job. Kipling employed
them as "serving men" and at first was impressed with them. He wrote a poem celebrating his pleasure with
their work:

"I keep six honest
serving men.

They taught me all I knew;

Their names are What and
Why and When

And How and Where and
Who.”

In their evening hours, Kipling's
servants were able to get singing gigs at various venues, including the Los
Angeles County Superior Court's annual dinner dance. They also auditioned for the television show,
America's Got Talent. It did not go well. Two of
the group began singing "Where or When." But, as you can imagine, the other members
objected. Then other members refused to
sing "Who Can I Turn To?" It
turned into a melee when it came to "How High the Moon."

Who, What and Where were tired of trying to break into show
business. They gave up singing and attended
night law school. How, Why and When were
doing more work than before because Who, What, and Where were too tired from
studying to do their share of work. How,
Why and When could not adequately cover for them. A disenchanted Kipling fired all six of them. They filed a wrongful termination suit. The case settled for an undisclosed amount with
an agreement that Kipling not publish a new poem about six deceitful serving
men who taught him nothing.

Wouldn’t you know it, no sooner was the case over, the six began
squabbling among themselves about how to divide the settlement proceeds. How brought an action against Why and hired
Who to represent him. Why hired What to
represent him and cross-complained against When. Where, just having passed the bar,
represented When.

Judge Foote held a settlement conference. I won't hold you in suspense. It turned out to be a disaster. Judge Foote wanted to bring his service cat
to the court as a calming influence, but thought better of it. Recent events served as a caution to judges bringing
animals into the courtroom. But he
thought it would not be controversial to bring his pet flying fish to the
settlement conference. He reasoned the
fish's graceful movement in the tank would be soothing to all the parties. In case you are wondering, Judge Foote had
never witnessed the fish actually fly.
And it did not occur to him that flying fish obviously would be a sore
point for the parties. The conference
began inauspiciously.

JUDGE FOOTE: "Who
represents the plaintiff?"

WHO: "That’s
correct, Your Honor."

JUDGE FOOTE: "What?"

WHAT: "Yes, Your
Honor."

JUDGE FOOTE: "I beg
your pardon."

WHAT: "I
represent the defendant."

JUDGE FOOTE: "What’s
your name?"

WHAT: "That’s
correct Your Honor."

HOW: (Sarcastically
under his breath) "He's got the
names right, only he doesn't know it."

JUDGE FOOTE: "How's
that?"

HOW: "I'm the
client. Can we talk about the
case?"

JUDGE FOOTE: (To How) "Who are you?"

WHO: (Responding) "That's me."

JUDGE FOOTE: "What?"

WHAT: "Yes?"

JUDGE FOOTE: "What?"

WHAT: "You
just said my name."

JUDGE FOOTE: "When?"

WHERE: "He's a
cross-defendant and should be dismissed from the case."

JUDGE FOOTE: "Why?"

WHY: (Turning to
his lawyer What) "Should I
answer?"

WHAT: "I'll
answer for you." (To the judge) "We would just like to settle Your Honor."

JUDGE FOOTE: (Sarcastically)
"When?"

WHEN: (To Where) "He called me."

JUDGE FOOTE: "What?"

WHAT: "Yes?"

JUDGE FOOTE: "What is
your name?"

WHAT: "What."

JUDGE FOOTE: (LOUDER) "I said, what is your name?"

WHAT: (Meekly) "What."

JUDGE FOOTE: (Exasperated,
turning to Who) "What is his
name?" (pointing to What)

JUDGE FOOTE: "Because
I'd like to know. Each of you please
give me your names so I can properly address the parties and counsel."

WHERE: "Where."

JUDGE FOOTE: "Here."

WHEN: "When."

JUDGE FOOTE: "Now." (Out of control) "This is worse than an Abbott and
Costello routine."

There was a stunned silence.

WHO: "That
remark was uncalled for."

JUDGE FOOTE: "You're
probably right. Maybe the Marx Brothers
would have been better."

WHO: "You
can't help us settle this case, Your Honor."

JUDGE FOOTE: "Why?"

WHY: "Don't
ask me."

WHAT: "I agree
with my client."

JUDGE FOOTE: "What?"

WHAT: "Yes?"

JUDGE FOOTE: "You're
right."

It was at this point that an exasperated Judge Foote pounded
the table with his fist. This so
startled the fish, that she flew out of her tank and began flying over the
heads of the astonished parties and counsel.
Luckily she flew back into the tank.

To relieve the tension, the litigants and counsel could not
help themselves and perversely began singing "On the Road to
Mandalay." They lodged a complaint
with the Judicial Performance Commission.
The commission called a special session.
Judge Foote wisely left his flying fish at home.

The presiding member of the commission asked the prosecuting
attorney the order in which the witnesses would testify.

Recently we lost one of our leading
jurists, Justice Richard Mosk, and I lost a dear friend. His professional accomplishments are well known, but I was fortunate to
know him as a person. I spoke in favor
of his confirmation to the Court of Appeal before the Commission on Judicial
Appointments. I have introduced him at
dinners honoring him and written about his many achievements. He was Dr. Johnson and I was his Boswell.

I wrote the
introduction to an oral history of Richard, published in 2012 by the Supreme
Court Historical Society. The interviewer is his son Matthew, a prize winning
investigative journalist. Richard talks
about his remarkable life that makes the reader want to linger on the
page. In an engaging style, he
reminisces about his friendships and acquaintances with presidents, governors,
and ambassadors. He reveals canny
political astuteness. He discusses his
many successes with candor and humility‑‑his work on the Warren Commission, the
Christopher Commission, the Iran-U.S. Claims Tribunal, Chair of the Rating
Administration of the Motion Picture Association. He modestly ascribes to chance his
accomplishments. If chance has favored
Richard on occasion, his keen intelligence and extraordinary ability have turned
those chance encounters into notable achievements. If you compliment him, you will hear a barely
audible "thanks," and he changes the subject.

Richard
was one of our most respected appellate justices. His opinions were beautifully crafted and
shined with lucidity. His style was
powerful, yet appropriately restrained.
His sense of justice is always apparent.

Richard and I met on opposite ends of a hotly contested case
about 47 years ago. From this hard-fought
litigation, there developed a friendship that grew deeper throughout the years.
Does that happen during litigation today? I loved to get his goat by characterizing his
client as a large, greedy corporate conglomerate. I described my client as a manufacturer of
environmentally friendly motor homes. Our
clients had entered into a joint venture that ended in a contentious contract
dispute that gave rise to protracted litigation. It ultimately ended well for both sides.

The
loss of a dear, close friend like Richard is difficult to bear. But there is comfort in his palpable and
continued presence in my life. You may
have had a similar experience with the loss of someone close to you. Richard and I still have our discussions and
occasional heated, yet friendly disagreements, seasoned by his sharp intellect
and wicked sense of humor.

I
was preparing my remarks for his funeral when he asked if I intended to discuss
an incident that occurred on the flight we took to Detroit to depose an important
witness in the motor home litigation. The
flight attendant had spilled a drink on Richard. That memorable contretemps exposed a facet of
his personality. "Should I mention
this at your funeral?" Richard answered,
"Of course." For historical accuracy,
however, he insisted I refer to the "flight attendant" as a
"stewardess." "That was
what they were called in the late 1960's," he argued. He agreed that the word
"stewardess" was sexist and offensive, but the reference to a term in
vogue at a particular time in history did not imply an endorsement of the term.
“'Stewardess' can always be placed in
quotes,” he said.

I
saw his point, but reminded him that I would be speaking, not writing, and that
I would be uncomfortable using the word "stewardess." Richard acknowledged my uneasiness. But because he would not be speaking at his
own funeral, and I would, he opted for me saying "stewardess." Thanks, Richard. I suggested a compromise. I would relate our conversation and express
the two points of view. He found that
acceptable and said, "Perfect, they all will think you are
nuts." By the end of the trip,
Richard and the "flight attendant" made up.

Our
conversation then took another path because it was relevant to the current
discussion about how we essay persons and events in our historical past. Alexander Hamilton's visage was in danger of
eradication from the $10 bill in favor of a woman's. Mr. Hamilton, our first Treasury Secretary,
does not look so good from today's vantage point. The same may have been said during his own
time. Political analyst and NPR commentator
Cokie Roberts wrote in the New York Times that Hamilton was "a
philandering liar." She takes him
to task for getting himself killed in a duel with Aaron Burr. His family was left penniless. Roberts would wipe Hamilton’s face off the $10
bill and replace it with his wife's, Elizabeth.
During Hamilton’s lifetime, Elizabeth stood beside him during the
scandal brought about by his affair with another woman and saved his political
career. And after his death, Elizabeth,
in her penurious straights, founded an orphanage that still exists.

Certainly
there is legitimate criticism that can be leveled against Hamilton by the standards
of any age. Also in the New York Times,
Nobel Prize winning economist Paul Krugman agrees. But he also agrees with authors Stephen S.
Cohen and J. Bradford DeLong who, in their book “Concrete Economics,” dub
Hamilton “the true father of the American economy.” After the Revolutionary War, Hamilton’s 1790
manifesto “First Report on Public Credit” argued that the federal government
assume all debts incurred by the states during the Revolutionary War. In doing so, the United States was able to
establish itself as a national government that would prove to be a reliable
borrower. And, I would add, it helped
make our country a strong international power.

Do we
evict Hamilton from the $10 bill? Do we
refuse to see the musical that bears his name?
And what do we do about presidents we revere as heroic figures who owned
slaves? Washington and Jefferson, among
others, come to mind. And should we
remove Woodrow Wilson’s name from the School of Public and International
Affairs at Princeton because of his unacceptable views about race?

I
asked Richard for his assessment about Hamilton. He and I agree with Krugman. Despite Hamilton’s appalling character flaws,
we should keep him on the $10 bill. He
and other great figures in American history were not perfect, but their
contributions were significant. But, without
question, we favored booting Andrew Jackson off the front of the $20 bill. It is fitting that Jackson, a racist, should
be replaced by Harriet Tubman. She was
diminutive in stature, but colossal in the fight for civil rights. She was responsible for freeing hundreds of
slaves. And she furthered the cause as a
spy for the Union during the Civil War.
She later continued the battle for women’s suffrage.

I
look forward to future conversations with Richard. I anticipate disagreements along the way. They keep me on my toes. And I will let him know if I get tickets to "Hamilton."

I watched the news
the other day. (Seventy years ago that
sentence would make little sense.) A
commentator spoke about the abuse of congressional and judicial power. This prompted me to ponder the meaning of
power in general. An insight in the form
of a rhymed couplet popped into my brain, “Conclusion: Power, an illusion.” Authorship unknown.

Example in mythology: The satyr, half human, half goat, salivating
with lust, chases the nymph through the forest.
The chase itself may give a false impression of the satyr’s power. If he catches the nymph, he may be able to
exert his power over her. But the satyr
is subject to a much more compelling power, the compulsion, the overpowering need to catch the nymph, and
maybe eat a tin can or two. Of course,
the satyr cannot escape responsibility for whatever crime he may commit against
the nymph . . . unless he has a terrific lawyer, and a persuasive psychiatrist.

And this takes me back to faulty
notions about judicial power. Oh
dear. It just occurred to me that the
satyr discussion in the preceding paragraph may not be the most apt analogy for
a transition. So do me a favor. Just forget about the preceding paragraph and
keep out of your mind comparisons between satyrs and judges. OK? If
you find this minor inconvenience an insuperable burden, please put the column
aside. I will catch you next month.

To continue with those still with us,
take it from me, judges have little or no power. The assembled lawyers stand at attention when
the judge “takes” the bench for oral argument.
The judge says, “You may be seated.” That is not power. Nor is it a sign of power that lawyers laugh
at a judge’s humorless jokes at a bar meeting. What about deciding a case, you may ask? Nothing to do with power. That is simply a judge doing her job.

Judges who look like judges were
thought by some to carry an aura of power and respect. What kind of appearance or look is that? Not the one I see when I look in the mirror. But you know what I mean, the elderly gray-haired
judge (so far that’s me), who is tall, gentlemanly, kindly, wise, all knowing
(not me) that was portrayed in 1940’s movies.

When I was the supervising judge of the
Los Angeles Traffic Court many decades ago, some actors were being filmed for a
Hanes Hosiery commercial in one of the empty courtrooms in the building. I knew one of the actors and popped into the
courtroom to say hello. Numerous male
actors, wearing judicial robes, were dancing around the courtroom in their
stocking feet. If judges were supposed
to be middle-aged males with silver hair and have a distinguished looking
profile, they fit the bill. I was the
only judge in the room who didn’t look like a casting director’s vision of what
a judge should look like. As for dancing
around the courtroom in one’s stocking feet….well, that’s an entirely different
story.

But whether a judge looks like a judge
or not, in many ways, a judge has less power than the average citizen. Drive down the freeway and some jerk cuts you
off. No matter who you are, it is best
practice not to flip the person off. It
is mandatory not to do so if you are a judge …. "Just say no." A commercial truck parks behind you in a near
empty parking lot early in the morning and blocks you. You nicely ask the driver to move a few
feet. The driver says “no” or simply
shrugs his shoulders and refuses to move.

That happened to my colleague Justice
Perren last week. He even said “please”
to no avail. He considered his options
and filed them in the rejection basket. He called the company to complain. Don’t hold your breath.

I understand Justice Perren’s
frustration. A young woman and I happen
to work out at the gym during the same early morning hour. I have a compulsion to ask her a question,
but … I feel constrained to do so. She
wears this backless workout outfit and, wait a second, don’t go there. Let me finish. Now you know why I told you to forget the
satyr discussion. Oh wonderful, I
brought up the very thing we all agreed we would forget. She has a tattoo on her back between her
shoulder blades. But it is not the
depiction of a scene, or a flower, or cryptic insignia. It is a printed paragraph of a few sentences.

The writing is
small requiring one‑‑OK, me‑‑ to get unacceptably close to read it. I squinted from a respectful distance and
tried to read it without getting arrested.
I can’t make it out. I think it’s
the Second Amendment. But I am pretty
sure she is not packing a gun, not with that gym outfit. Yes, I could just ask what the paragraph
says. I don’t know… I may be asking for
trouble. I can see the headlines. Judge
accosts young woman in gym. I don’t
need it.

But wait a
minute. We already determined I don’t
look like a judge. I could ask her, “Excuse
me, but I couldn’t help noticing….”
True, she might say “none of your business and quit looking at my
back.” But she wouldn’t even know I am a
judge. I think I may ask her. If I do, I will report back and let you know
what happened.

I know one
person who could never ask the young lady the question I wish to pose, Judge
Merrick Garland. He actually looks like
a judge. And he has a perfect name for a
judge. And he is one of the finest
judges one can imagine. And there is
Congress. And this takes us back to
false notions of power. Do not let those
senators fool you. They are not doing
their job.

I watched the news
the other day. (Seventy years ago that
sentence would make little sense.) A
commentator spoke about the abuse of congressional and judicial power. This prompted me to ponder the meaning of
power in general. An insight in the form
of a rhymed couplet popped into my brain, “Conclusion: Power, an illusion.” Authorship unknown.

Example in mythology: The satyr, half human, half goat, salivating
with lust, chases the nymph through the forest.
The chase itself may give a false impression of the satyr’s power. If he catches the nymph, he may be able to
exert his power over her. But the satyr
is subject to a much more compelling power, the compulsion, the overpowering need to catch the nymph, and
maybe eat a tin can or two. Of course,
the satyr cannot escape responsibility for whatever crime he may commit against
the nymph . . . unless he has a terrific lawyer, and a persuasive psychiatrist.

And this takes me back to faulty
notions about judicial power. Oh
dear. It just occurred to me that the
satyr discussion in the preceding paragraph may not be the most apt analogy for
a transition. So do me a favor. Just forget about the preceding paragraph and
keep out of your mind comparisons between satyrs and judges. OK? If
you find this minor inconvenience an insuperable burden, please put the column
aside. I will catch you next month.

To continue with those still with us,
take it from me, judges have little or no power. The assembled lawyers stand at attention when
the judge “takes” the bench for oral argument.
The judge says, “You may be seated.” That is not power. Nor is it a sign of power that lawyers laugh
at a judge’s humorless jokes at a bar meeting. What about deciding a case, you may ask? Nothing to do with power. That is simply a judge doing her job.

Judges who look like judges were
thought by some to carry an aura of power and respect. What kind of appearance or look is that? Not the one I see when I look in the mirror. But you know what I mean, the elderly gray-haired
judge (so far that’s me), who is tall, gentlemanly, kindly, wise, all knowing
(not me) that was portrayed in 1940’s movies.

When I was the supervising judge of the
Los Angeles Traffic Court many decades ago, some actors were being filmed for a
Hanes Hosiery commercial in one of the empty courtrooms in the building. I knew one of the actors and popped into the
courtroom to say hello. Numerous male
actors, wearing judicial robes, were dancing around the courtroom in their
stocking feet. If judges were supposed
to be middle-aged males with silver hair and have a distinguished looking
profile, they fit the bill. I was the
only judge in the room who didn’t look like a casting director’s vision of what
a judge should look like. As for dancing
around the courtroom in one’s stocking feet….well, that’s an entirely different
story.

But whether a judge looks like a judge
or not, in many ways, a judge has less power than the average citizen. Drive down the freeway and some jerk cuts you
off. No matter who you are, it is best
practice not to flip the person off. It
is mandatory not to do so if you are a judge …. "Just say no." A commercial truck parks behind you in a near
empty parking lot early in the morning and blocks you. You nicely ask the driver to move a few
feet. The driver says “no” or simply
shrugs his shoulders and refuses to move.

That happened to my colleague Justice
Perren last week. He even said “please”
to no avail. He considered his options
and filed them in the rejection basket. He called the company to complain. Don’t hold your breath.

I understand Justice Perren’s
frustration. A young woman and I happen
to work out at the gym during the same early morning hour. I have a compulsion to ask her a question,
but … I feel constrained to do so. She
wears this backless workout outfit and, wait a second, don’t go there. Let me finish. Now you know why I told you to forget the
satyr discussion. Oh wonderful, I
brought up the very thing we all agreed we would forget. She has a tattoo on her back between her
shoulder blades. But it is not the
depiction of a scene, or a flower, or cryptic insignia. It is a printed paragraph of a few sentences.

The writing is
small requiring one‑‑OK, me‑‑ to get unacceptably close to read it. I squinted from a respectful distance and
tried to read it without getting arrested.
I can’t make it out. I think it’s
the Second Amendment. But I am pretty
sure she is not packing a gun, not with that gym outfit. Yes, I could just ask what the paragraph
says. I don’t know… I may be asking for
trouble. I can see the headlines. Judge
accosts young woman in gym. I don’t
need it.

But wait a
minute. We already determined I don’t
look like a judge. I could ask her, “Excuse
me, but I couldn’t help noticing….”
True, she might say “none of your business and quit looking at my
back.” But she wouldn’t even know I am a
judge. I think I may ask her. If I do, I will report back and let you know
what happened.

I know one
person who could never ask the young lady the question I wish to pose, Judge
Merrick Garland. He actually looks like
a judge. And he has a perfect name for a
judge. And he is one of the finest
judges one can imagine. And there is
Congress. And this takes us back to
false notions of power. Do not let those
senators fool you. They are not doing
their job.

About Me

Justice Arthur Gilbert is the Presiding Justice of Division 6 of the California Court of Appeal, Second District. By day Justice Gilbert presides over his cases with quiet but firm dignity. The evening is a different story. He sheds his robe to become a probing columnist on a tireless quest to reveal little known facets of the justice system. For over two decades Justice Gilbert has written his column for the legal newspaper, The Los Angeles Daily Journal to a confused but devoted readership. This blog site contains selected columns from the more than 200 that have appeared in past editions of the Daily Journal.
Gilbert's books, "Under Submission" and "Under Submission Volume II are available on Amazon.com